By Paul Sills
We are at a tipping point in our society – with the impact of COVID-19 and now the Black Lives Matter movement challenging the systemic discrimination imbedded in so much of Western society.
We have no processes or precedents for either. No economic modelling or blueprints that can readily guide us on how to move forward. We are all trying to improvise and respond to new data – almost on a daily basis.
The future is uncertain both in terms of the lasting impact of the virus (on our health and the global economy) and the depth and permanence of changes made in response to the protests in America and around the world – protests that now have such universal support they cannot be ignored by those in positions of privilege and power. Both are likely to result in increased conflict.
The Covid-19 crisis will see insurance claims for loss of revenue, force majeure arguments in commercial contracts, increased investor-state arbitration, airlines suing governments for imposing quarantine regulations restricting travel (as is now threatened in the UK), and more.
Following the death of George Floyd we are seeing increased tension with law enforcement in some areas, curfews in US cities and the army on their streets, attacks on public monuments, and a ground swell of people of all nationalities and ethnicities saying enough is enough. By any reasonable measure of public sentiment, it seems clear this movement is not going to fade away.
There is change everywhere we look, and most humans do not deal well with change. We are creatures of habit and fearful of what we do not know nor understand. This fear and uncertainty itself leads to increased conflict. People, tribes, and societies will feel the need to protect themselves, their way of life and their collective identity. The dominant culture will resist change and ceding power, the discriminated and dehumanized will insist upon it.
Around the world the courts are likely to see a sharp increase in litigation as a result of economic pressure, challenges to the status quo and the testing of unchartered waters as we navigate our way through change and the ‘new normal’.
The courts in New Zealand and elsewhere have experienced an unprecedented delay in processing their usual workload. With a significant post-lockdown backlog to contend with and a likely increase in new filings, there is talk of and real concern about a new ‘hump’ in litigation – causing further delay and pressure.
Legal profession’s role
So where do we – the legal profession – sit in all of this? What is our role moving forward?
Do the litigators among us rub our hands with glee and make plans for a second holiday home (perhaps in Queenstown – I hear they are in trouble)? This is the silver lining embedded in the current crises we face, is it not?
Maybe not. Now might be the perfect time to remind ourselves why we are really here and what we lawyers can contribute to the world. Scratch around in our past and it turns out that our role moving forward is the same as it has always been. Many of us have just forgotten what that is.
In 1983 at the American Bar Association Midyear Meeting, then-Chief Justice Warren Burger told the audience that the original role of lawyers was to heal social conflict and that it was time to embrace that role again. He asked: “Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?”
Chief Justice Burger was not the first legally trained public figure to make that point.
Mahatma Gandhi put it this way: “I understood that the true function of a lawyer was to unite parties riven asunder.”
And perhaps most famously of all:
“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln.
Those observations do not sit comfortably in our current blame culture, which is heavy on self-righteous anger and low on compassion; high on individualism and low on genuine connection. The practice of law has modelled itself on this cultural attitude. Of course, that is not true of all lawyers and all aspects of legal practice – I am generalising to make a point. But it is a fair point.
Are we using the best tools available?
Litigation remains our predominant response to dealing with significant conflict. Mediation, which promised so much 30 years ago (and still does) has not got the traction it deserves. While the sophisticated users of mediation know it and use it well (insurance companies, large corporates, multi-nationals, franchisors), the uptake amongst the rest of those in conflict has been poor. Mediation in many respects has stalled in its development. Why is that?
It is in part because the way we mediate is limited in scope – the overwhelming majority of mediations are still run on the traditional one-day model. That model has not changed since mediation was first introduced into the disputes resolution market.
Why has the early resolution of disputes using a multi-day negotiation model not gained traction? Why are we not facilitating debates involving the stakeholders that have an interest in issues of significant public policy?
What about the resolution of the increasing number of long term resource issues that are now cropping up and will be here to stay (drinking water, access to healthcare, and food supply)?
What about the crisis to end all (literally) – climate control? Our approach to that cannot be litigated – there are no winners, only losers, when you are all in the same boat that is sinking (thank you Ken Cloke). There is so much more we could and need to be doing with facilitated negotiations to resolve conflict.
Our individualistic blame culture (the dominant culture in most Western societies) ensures we are unable to do this when it comes to conflict:
“The ability to observe without evaluating is the highest form of intelligence.” – Jiddu Krishnamurti
The more the issue or subject matter of a conflict challenges our identity – us, our team, tribe, group, or our very way of living – the less able we are to observe without judgement. Our response to conflict and our ability to negotiate under pressure are driven by our ideas about who we are and our identities. The things we think define us and that we will fight to protect are the very things that force us into polarised positions that we then struggle to move away from.
Litigation is well suited to our identity-based approach to conflict – making conflict an argument resembling a war to be won or lost at all costs. But is that the right approach? The three quotes refered to above suggest not.
With all that has happened in recent weeks around the world, and all that is yet to unfold, now is the perfect time to look for opportunities, new beginings and to revisit the origins of what it means to be a lawyer.
This is the first in a series of articles that will look at our dominant cultural norms and an alternative, discuss what changes may be of benefit to all, and what role we lawyers can play as the healers of social conflict. As Joe Strummer was fond of saying: The Future is Unwritten.
Paul Sills firstname.lastname@example.org is an arbitrator, mediator and barrister specialising in the effective resolution of commercial and civil disputes. He is a Fellow with a number of leading ADR organisations worldwide.